Articles Posted in Misc

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Every 23 seconds, an attorney is asked: “What are my chances of winning?”

Some attorneys play along with this game, especially if it’s a slow month, and throw out a number, like: “You have an 90% chance of winning”.  Most people call several attorneys, and the attorney who is most confident (throwing out numbers, say, in the 90% range)  may end up getting the case.  Confidence is a good for business, right?  But, are such numbers honest?

After 23 years of defending criminal cases (my web people love statements that brag about decades of practice, I will get a star beside my name for this), I am here to tell you that such numbers are pulled out of thin air.  I know, it’s shocking to hear that an attorney could utter words that stretch the truth.  Pull yourself together and read on, because other professions are just as guilty of spitting out misleading/unsubstantiated numbers as attorneys.

Financial advisers and scientists are at the top of the misleading numbers list.  Yes, this is why you don’t believe every infomercial that claims “studies have shown xyz 99% effective”.  But the problem here runs deeper than shady marketing practices, the problem involves what sort of conclusions scientists and financial analysts should be permitted to draw from their data.  To understand problems with data interpretation, we’re going to take a journey through my Kindle highlights from an excellent book by Nassim Taleb entitled Fooled By Randomness.   The book explains just how difficult it is to answer the very simple question “What are my chances”. Continue Reading

What if you were just told that you’re about to hear a “shocking, unethical, and unprofessional” story?  First, the word “shocking” sounds like something straight out of The National Enquirer, and handshakeevery week this tabloid claims to have a new, shocking story (which then has the effect of making it seem not so shocking).  Is it shocking that a vegan celebrity was caught eating ribs at 4 Rivers?  No, its not, because the BBQ at 4 Rivers is so good, it’s intrinsic deliciousness has the power to convert vegans to the other team.  Now, maybe vegan-to-ribs is a bit of a stretch, vegans may start with cheese or egg long before they lick the meat off a slab of ribs.  If CNN or Fox News tells you something is “shocking” and “unethical”, you’ll immediately think that some politician was caught with “his” pants down (yes, I said “his”, because it seems that women don’t get caught in such compromising positions–why is that?).  Today, our shocking story doesn’t come from a tabloid, or cable news, it comes from The Florida Supreme Court.

In The Florida Bar v. Adams and Filthaut, the Florida Supreme Court called the behavior of these lawyers “the most shocking, unethical, and unprofessional as has ever been brought before this Court”.   (Fla. No. SC14-1054, August 25, 2016, you may find the opinion by clicking here).

It all began in Tampa with a lawsuit between two local DJ’s.    After the first day of trial, the lawyers for each side retired for the evening.   A paralegal for the defense attorneys (Adams, Filthaut, and Diaco) spotted the opposing lawyer (Campbell) at a bar in a nearby steakhouse.  She called her lawyer bosses to let them know what she’d found.  After a flurry of communications between the paralegal and the three defense lawyers, a plan hatched to have their female paralegal flirt with opposing counsel (he didn’t recognize her as being part of the other side).  She flirted, lied about where she worked (obviously), and bought him drinks–enough drinks to dip him into a DUI situation.  And, a DUI arrest was the goal here.  To aid in the plan, attorney Filthaut reached out to a cop friend Sargent Fernandez to post up outside the steakhouse to await his big lawyer arrest.  Everything was in place for when Campbell would drive home. Continue Reading

“Comparison is the death of joy.”  – Mark Twainscoresheet

Our brains are constantly sizing up other people, and it should come as no surprise that there is always someone with less body fat and a bigger bank account.  Comparison can be a bad habit, yet every party has at least one “one upper”, someone who has always been to a better restaurant, a better beach, or went to a better school than you did. [for the ultimate one upper story, see comedian Brian Regan, last 3 minutes of “I Walked On The Moon”]

Comparison is a big problem in criminal defense, even though it provides plenty of referrals.  For example, I had several 25 year minimum mandatory prison sentences dismissed for a client and as such, every referral from this old client starts like this: “Guidry, you got my friend’s 25 year mandatory prison case dismissed, and my case isn’t that serious, so you can do the same for me, right?”   Yes, I’m bragging about a serious case result, and yet, providing a helpful example.  Cocky, yet informative.

Every criminal defense attorney has negotiated a “deal of the century” that was, subsequently, not appreciated by the client.  Here’s my paraphrasing: “ATTORNEY: Great news, they’re going to drop all charges, the cops will write you a letter of apology, and you’re getting two free tickets to Sea World.  CLIENT: What? Sea World? I want Disney tickets or there’s no deal.  My bunk mate’s attorney got his whole family Annual Passes to Disney.  You’re not as good of an attorney as my bunk mate, are you?”

There is sentencing inconsistency in Florida, the statistics bear this out (what statistics you ask?  Just a few more paragraphs to go, then I’ll show you).  A case that is serious in Orange County may not be that big of a deal in Osceola County, or Seminole County (my SEO people love it when I mention my practice counties by name, so yes, I practice primarily in Orange, Seminole, and Osceola, just saying).  Some counties are known for their outrageous sentences, and that’s sad (Marion County comes to mind, and I think they’re proud of this fact).   But, such disparity raises an interesting question: Is it possible that a long sentence can violate the Constitution as being cruel, even if it is legal?   The Eighth Amendment to the Constitution bans cruel and unusual punishment.   Can a sentence fall so far outside the range of typical sentences that it becomes cruel?  These issues are addressed in the recent case of Alfonso-Roche v. State, 2016 Fla. App. LEXIS 8352 (4th DCA 2016, 4D13-3689). Continue Reading

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Frank Turner The Sleeping Souls at The Beachum, June 11, 2016

I took my daughter to see Frank Turner & Gogol Bordello at The Beachum last night.  Really, she took me.  I’m not a music journalist, as you will soon realize, so, I’m going to tell you how I felt.

First, Frank Turner and his band The Sleeping Souls.

A few years ago, my friend Ed Leinster passed away.  He had worked with me here at the office for many years, and his motions were absolutely brilliant.  He was brilliant.   Before he passed, he told me of how he was going to legally dismantle the entire sex offender registration scheme.  After explaining it to me, I was convinced he could do it–but he passed on before ever getting the chance.  To understand this loss, imagine Einstein passing on before he formalized his theories on relativity.  Imagine Michael Jordan giving up basketball in high school.  I’m not exaggerating, Ed was just that good.

So, I knew Ed was a legal genius, but I also heard he was a truly gifted trial attorney.  And, that’s where my good friend Ted Marerro comes in.  When Ted was prosecuting felony cases, he went up against Ed.  Bottom line:  Ted racked up 70+ jury trials as a prosecutor, and no one came close to the skills of Ed Leinster.

Originally, this interview was going to be about Ed.  But, Ted’s insights into everything else are worth more than what we initially set out to accomplish.  For example, when defending a cold blooded killer, how do you contain your disdain as he delights in telling you of his murderous ways?  How well can opposing counsel beat your ass without ever having met the client before jury selection?   Ted is not religious (understatement), but he lists several examples of how Christians have gained his respect.  There’s stuff in here about Bob Wesley, Bill Garmany, Jeff Ashton, Joe DuRocher, Don West, Chaney Mason, Andrea Black, and numerous local judges.  A conversation with Ted is like that road trip where you’re really looking forward to the destination–but end up having more fun along the way.  I’m going to convince Ted to come back for Part 2 and 3.  Here’s Part 1.      Continue Reading

I”m warning you in advance that this is, sort of, a book review.  Technically, a book review would require far more thought than what I’m about to say, so let’s call this a strong book recommendation.  What has possessed me to write my first book recommendation ever?  I’ve written over 340 articles for this blog and at about article #10, I started running out of ideas.  This nagging feeling of having nothing to write about continues to this day so, I’m going to recommend a book by Tim Kreider entitled “We Learn Nothing”.

I read this book months ago, so the details here are bit sketchy, sort of like I remember Obi One getting killed in the first Star Wars (makes me cry every time), but I don’t remember much else (well, I also remember Vader chocking some Death Star board member using the force, but that’s about it).   Anyway, I couldn’t put this book down.  I’m the type of person that reads, like, ten books at a time, and I blame Kindle for enabling this attention disorder.  Kreider’s book has so much wit and wisdom, it made me feel inadequate, and I soon realized I will never be able to write a book this good.  “We Learn Nothing” is a collection of true stories, most of which begin with drinking shenanigans, but end up revealing some eternal truth.  The heart of this book is great storytelling, and great storytelling can get you anywhere in life; you can write great songs, get elected to office, win over juries at the local courthouse, get funding for your tech-startup.  Anything.

Let me tell you how I came upon this book.    I was listening to Tim Farriss’  podcast, when he departed from his usual two hour life hacking interview, and instead gave a 15 minute nugget of wisdom from Tim Kreider entitled “Lazy, a Manifesto”.  You can find the audio here, and it is a must listen.  Seriously.

Without further ado, here’s some thoughts from Mr. Kreider’s “We Learn Nothing”traffic, in no particular order (compliments of my Kindle’s ability to save notes): Continue Reading

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“The assumption of an absolute determinism is the essential foundation of every scientific inquiry.”
~ Max Planck
“We must believe in free will, we have no choice.”
~ Isaac Bashevis Singer

Everyone wants to hold criminals responsible for their actions.  This “responsibility” has its foundation in the belief that we all have the free will to choose right from wrong.  What if free will is just an illusion, how would that impact the criminal justice system?   Free will creates the moral structure that provides the foundation for our criminal justice system.  Without it, most punishments in place today must be eliminated completely.  Its no secret that I’m a firm believer in free will, but I’m also a firm believer in arguing against it when it helps my clients.  That’s what we lawyers do (call me a hypocrite if you like, I can take it).  Now, let’s delve into the issues and practical effects of eliminating free will.

We only punish those who are morally responsible for their action.  If a driver accidentally runs over a pedestrian–there will be no criminal charges in the death of the pedestrian.  This is what we call an “accident”.  However, if a husband runs over his wife after an argument, that same pedestrian death now constitutes murder.  It was the driver’s “intent” that made one pedestrian death a crime, and the other not. But, what if we examine the husband’s brain, and an MRI discovers a frontal lobe defect that could explain his deviant behavior?  Is he still guilty of murder?  If such a defect “caused” the husband’s actions, our criminal justice system has laws in place that would label the husband “Not Guilty By Reason of Insanity”.  That being said, what happens if “causation” runs deeper than a mere frontal lobe problem?

Neuroscientists get excited when their brain scans detect an abnormality, but today we’re going to look beyond this modern day phrenology.  Some scientists now claim that human behavior may not, in fact, have its origins in the brain.  Yes, there’s a battle brewing between physics and biologists.  On the one side, we have the white coats feeling lumps on our skulls, or seeing brain electrical activity on a computer screen; all of which is fairly impressive.  But the physicists are telling us that causation predates the brain.  Basically, everything (including brain activity) is the result of the collision of molecules that behave according to the laws of physics (we call this determinism).  If every event is determined by a previous event, there is no room for squishy concepts of “free will” and “morality”.   Free will, then, amounts to one of many illusions inflicted upon us by our tricky brains.  As a criminal defense attorney, I am anxious to see whether or not folks who believe we have no free will are willing to dismiss all charges against my clients who may have (God forbid) raped their wife or killed their dog (sometimes pets evoke more emotion than spouses, I’m just saying).

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gavel3.jpgTiming is everything. This is especially true of criminal cases. Unfortunately, not everyone has the financial means to hire an attorney right away. So, what happens when a defendant delays hiring private counsel–must the judge permit him to have the lawyer of his choice?

A bit of wisdom here. Hiring a lawyer late in the game is bad for everyone. The defense attorney has less time to prepare, and an investigation conducted months after the incident will not be as effective. As a general rule, accused citizens have the right to pick our own attorney (if they can afford one), but we do not have the right to an attorney of our choosing at any time we like. This decision is left up to the judge.

[Warning, skip this paragraph if you’re sick of defense attorney war stories, really, I understand] Over ten years ago, I was hired to represent a client on the morning of trial. This was the first (and last) time I will ever do such a thing. It was a felony drug case, never continued by the public defender, and I had already spoken to the prosecutor who had no objection to a continuance. Vegas odds would have me getting this first time continuance, right? The only reason I tried to get into this case is that I uncovered serious legal issues that could have (should have) been resolved by a Motion to Suppress, but the public defender never filed any motions. Even with all this going for us, the judge refused to let me in the case. I refunded the fee (ouch), and nobody was happy. I wanted to help this guy. The public defender wanted one less case. My client wanted me defending his case. Nobody got what they wanted. Yes, the constitutional right to an attorney of your choosing was clearly ignored by this judge. (I think my client would have won an appeal of this judge’s decision, but he didn’t want to appeal)
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sky night.jpgI love Carl Sagan. He had a childlike wonder for the vastness of space and time, but sort of glossed over important things like freewill and consciousness. I think it was Sagan that first said something like, ‘we’re all made of stardust’. Pretty cool concept. And, even though the atoms that make up my body were once the waste product of some star, I’d like to know how these lifeless atoms became consciousness.

First off, maybe I’m asking the wrong question. My question presumes that there is such a thing as consciousness, so we could attack this problem by simply denying the existence of consciousness. There are several ways to do this. For example, you could claim that so many things are conscious, that the term becomes meaningless. After all, isn’t the 7-eleven gas pump “conscious” of my credit card entering the little swipe gap, and so forth and so on? Well, this form of attack is slightly dishonest, as most of us should be able to agree that the one thing we know “for certain” is our own consciousness. Now, I can’t speak for you–you may be a robot or some sort of trickery–but I know what “I am”. I am conscious. Ok, so there’s at least one vast collection of stardust that is officially conscious.

By the way, if all we really know for sure is that “I AM’, this leads me even further off topic. When Moses was talking to God, he was curious as to God’s name. A reasonable request, because maybe Moses was talking to an alien, or someone from another dimension, or who knows what. If I was talking to some scary strange voice, I would probably first wet myself (just being honest), and second, ask “Who are you? What are you?” I love the response found in Exodus 3:14: “Now they may say to me, ‘What is His name?’ What shall I say to them?” 14 God said to Moses, “I AM WHO I AM”; and He said, “Thus you shall say to the sons of Israel, ‘I AM has sent me to you.'” Does a name get any better than I Am? (Maybe this name was some sort of hint as to the essence of God)

Back to the task at hand. We start with some lifeless stuff. Atoms. We end up with consciousness. Can evolutionary biology tell us how consciousness got here? Well, we all know there was a big bang, then bacteria, then billions of years of natural selection, then “I am”. From a purely scientific viewpoint, why should atoms bother to organize into a conscious being? Seems pretty pointless. Sure, you can find my personal opinion in the New Testament, but it would be interesting to hear a purely physical explanation for the existence of consciousness.
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camera warning.jpgEveryone now has phones with cameras, and the world is not necessarily a better place as a result. For example, we’ve seen huge declines in topless sunbathers in France, for fear that “you can end up topless on your own Facebook wall.” [ SeeThe Real Reason French Women Have Stopped Sunbathing Topless, The Guardian, Morwenna Ferrier, July 28, 2014] This is sad development, indeed.

Modern technology is now in the hands of the police. No, I’m not speaking of mine-resistant ambush protected armored vehicles (MRAPs)–police departments actually own such things–but I’m talking basic, cheap technology–like video cameras. Some police now have video cameras in their police cars, and “body cams” on their chest. Is this a good thing? Yes, and no. Here’s why. Video not only protects citizens–video can reveal the truth (who could possibly be against “truth”?). Video also provides accountability, and, it may even tame the nasty customer service skills of some officers.

When I started defending criminal cases back in 1993, the Orange County Sheriff’s Office began experimenting with video cameras in patrol vehicles. Guess what happened? We defense attorneys started winning more DUI trials. Why? Without video, the officer (shiny badge and trained to testify) went before the jury and describe the defendant’s drunken state. The jury leaned in, and believed every word. With video, the jury was no longer required to “take the officer’s word for it”. They could see it for themselves, and the drivers looked far better than the officer’s description. So, guess what? The sheriff’s office pulled all the video cameras from their vehicles. Well, almost all. Through some miracle of science, an occasional DUI video would pop into existence out of nowhere–but only if the driver was falling down drunk, vomiting. Yes, vomit was about the only thing video taped by early dash cams, and they came out of nowhere. Hey, I guess if some people believe our gigantic universe popped into existence from nowhere, how hard is it to believe that a tiny little video can come from nowhere?

The good news is, times are changing. There are more videos than ever. Unfortunately, some police officers have learned how to work the video system. The new trick is to testify on the video to things that can’t, necessarily, be seen. A few common catch phrases are:

Stop resisting, stop resisting!” (reminds me of “stop hitting yourself”)

I saw the dope, where did you hide it?

Stop trying to take my gun” (click here to see a video of cop yelling ‘stop trying to take my gun’, when, in fact, the man’s hands were in the air. Cops hid the video–but when it was found–cops were fired and indicted for fraud)

It’s Coming Right For Us” – South Park episode, in order to avoid Colorado hunting laws, hunters can shoot animals out of season in “self-defense”, so Cartman and the gang are taught to yell “it’s coming right for us” before every shot fired. No, this isn’t really related to the topic of the day.
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